Background: The Supreme Court of the United States is seen in Washington, March 26, 2024. Inset: Donald Trump listens during a roundtable with industry executives about reopening country after the coronavirus closures, May 29, 2020, in Washington. (AP Photo/Alex Brandon)
On Thursday, the U.S. Supreme Court will hear a question of huge significance for Donald Trump and the nation as it weighs whether a former president can be criminally prosecuted for acts carried out while in office — or, by the sheer fact of having once served in the role of commander in chief, he is, as he argues, immune.
In the seven months since his indictment in Washington, D.C., for alleged obstruction of an official proceeding and three distinct felony conspiracies — conspiracy to defraud the United States using “dishonesty, fraud and deceit to impair, obstruct and defeat the lawful federal government,” conspiracy to corruptly obstruct and impede the Jan. 6 congressional proceeding, and a conspiracy against the right to vote — Trump has tried repeatedly to advance his novel “absolute immunity” argument.
This claim has been widely ridiculed by legal experts and rejected resoundingly by federal and appellate judges. The overarching legal understanding, special counsel Jack Smith has now argued ad nauseam, is guided by over two centuries of American history positing that presidents, once leaving office, are open to criminal prosecution like any ordinary citizen.
Before his criminal hush-money and election interference trial in New York for 34 felony charges began, Trump invoked immunity to dismiss the indictment. He failed. He tried it in Georgia where he faces 13 charges for racketeering connected to his fake elector campaign. That failed. In Florida, where Trump is charged with violating the Espionage Act and faces over 40 counts for illegally retaining classified materials, including nuclear programs secrets, the verdict is still out but he has received the benefit of time.
The presiding judge there, his own nominee U.S. District Judge Aileen Cannon, has slow-walked a response: Trump asked her to dismiss on the immunity basis on March 24. A month later, Cannon has provided no answer.
Strategically speaking, the immunity claim has been a boon for Trump. When he tried to dismiss his Jan. 6 election subversion case before U.S. District Judge Tanya Chutkan in Washington, D.C., for example, he waited three months until after his indictment to make the filing. A trial date had been set for March 4 on August 28. Trump appealed, and that meant Chutkan had to put the case on hold until the appeal was resolved. Smith’s push to end-run that delay failed when he asked the Supreme Court to rule on the immunity claim before it went to appeals court. He was denied.
Now there’s simply no more road to run for Trump or Smith. There are less than six months until Election Day. How quickly the Supreme Court renders its decision is unclear and Thursday marks the last day of the current term. The pace of the justices’ reply will be self-determined and while what they will rule and when is a mystery, at least on one front, there is no question: There is no shortage on the record of stark and dramatically-written opinions to counsel them.
Law&Crime takes a look at some of the most pertinent rulings and filings to emerge in Trump’s immunity fight.
There are no ‘get-out-of-jail-free’ passes
As Law&Crime has previously reported, Trump claims his prosecution is unfair because he is being prosecuted for conduct lying “within the outer perimeter” and “at the heart of his official responsibilities as president.”
That conduct, he argues, includes his claims of voter fraud leading up to Jan. 6 — claims Trump still makes today. Smith was quick to remind the former president last year as the immunity fight began that the House Select Committee to Investigate the Jan. 6 Attack on the U.S. Capitol, the FBI, many of the nation’s top intelligence apparatuses, the U.S. Justice Department and more than 62 lawsuits resoundingly determined there was no widespread fraud in the 2020 election. Further, Trump, as public testimony from witnesses like former Attorney General Bill Barr and others have corroborated in the last three years, was told this information well before his remarks at the Ellipse on Jan. 6 and before the Capitol came under siege by rioters, many of them armed.
Nonetheless, Trump maintains the only time a former president can be criminally prosecuted is if he is impeached and convicted by Congress.
When Chutkan ruled against this argument precisely, the judge thundered that “no man in this country” was “so high that he is above the law.”
“The Constitution’s text, structure, and history do not support that contention. No court — or any other branch of government — has ever accepted it. And this court will not so hold. Whatever immunities a sitting President may enjoy, the United States has only one Chief Executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass. Former Presidents enjoy no special conditions on their federal criminal liability,” she wrote.
Effectively deeming Trump’s interpretation of immunity under the impeachment contingency clumsy at best, she added: “From this language, defendant concludes ‘that the President may be charged by indictment only in cases where the President has been impeached and convicted by trial in the Senate.’ But Defendant is not President, and reading the Clause to grant absolute criminal immunity to former Presidents would contravene its plain meaning, original understanding, and common sense.”
After Trump appealed, Smith replied:
A President who unlawfully seeks to retain power through criminal means unchecked by potential criminal prosecution could jeopardize both the Presidency itself and the very foundations of our democratic system of governance,” he wrote, adding that favoring Trump’s interpretation “would grant immunity from criminal prosecution to a President who accepts a bribe in exchange for directing a lucrative government contract to the payer; a President who instructs the FBI Director to plant incriminating evidence on a political enemy; a President who orders the National Guard to murder his most prominent critics; or a President who sells nuclear secrets to a foreign adversary, because in each of these scenarios, the President could assert that he was simply executing the laws; or communicating with the Department of Justice; or discharging his powers as Commander-in-Chief; or engaging in foreign diplomacy.
One might expect Smith’s team to invoke the words of at least one current justice on the bench come Thursday. As Smith recalled last year, it was Justice Brett Kavanaugh, Trump’s appointee, who ruled in a concurring 2020 opinion for Trump v. Vance that no one is above the law and that this concept, “applies, of course, to a president.”
It seems likely that Clarence Thomas will rule in favor of Trump.
The ‘demonstrable need to deter attempted usurpation of the Presidency’
On Valentine’s Day, a group of constitutional law scholars told the high court that Trump’s there was a “demonstrable need to deter attempted usurpation of the presidency” and that Trump’s “boundless immunity” claim had “no support in the Constitution’s text and history.”
If the Supreme Court were to take the former president’s arguments at face value, they added, and consider his conduct on Jan. 6 within his “official acts” it would irrevocably “encourage a future President to violate federal criminal statutes by deploying the military and armed federal agents in efforts to alter the results of the presidential election.”
‘Former President Trump has become citizen Trump’
Trump’s long road to the U.S. Court of Appeals did not end with victory.
After his lawyers argued that a president could murder his political rivals without fear of prosecution — unless impeached and convicted by the Senate — the panel sat on it for roughly a month before ruling unanimously against him, saying that “when considering the issue of presidential immunity, the Supreme Court has been careful to note that its holdings on civil liability do not carry over to criminal prosecutions.”
“For the purpose of this criminal case, former President Trump has become citizen Trump, with all the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as president no longer protects him against this prosecution,” the appellate court wrote of Trump’s election subversion indictment.
The separation-of-powers doctrine settles this and further, the court found, Trump was unpersuasive on official versus unofficial acts. Citing rulings from Nixon and slapping down Trump’s “oft-quoted” cite from Marbury declaring a “President’s official acts ‘can never be examinable by the courts,” they told Trump he “misreads Marbury and its progeny.”
“Properly understood, the separation of powers doctrine may immunize lawful discretionary acts but does not bar the federal criminal prosecution of a former president for every official act,” the per curiam ruling stated.
Trump’s claim of “categorical immunity from criminal liability for any assertedly ‘official’ action that he took as President” was “a contention that is unsupported by precedent, history or the text and structure of the Constitution,” the court concluded.
Trump is ‘is a citizen, not a King’ and cannot ‘transform a government of laws into a fiefdom for himself’
Ahead of oral arguments at the Supreme Court, the American Civil Liberties Union filed a friend-of-the-court brief on April 8 saying the “audacity” of Trump’s immunity claim to head off his criminal case in Washington, D.C., contained a key inherent flaw.
“On the former President’s view, even if he had personally conspired with a circle of his supporters to assassinate the Vice President and hold Congress hostage in order to remain in power, he would be immune from criminal prosecution thereafter,” the ACLU’s brief said. “The very audacity of the claim reveals its central flaw — it would for all practical purposes allow a rogue President to seek to transform a government of laws into a fiefdom for himself, and to avoid all criminal accountability thereafter for doing so. That proposition cannot be squared with the most fundamental premises of a constitutional democracy, and must be rejected.”
The ACLU argued that the president has historically not been able to avoid following the law.
“More than 200 years ago, Chief Justice Marshall upheld a subpoena duces tecum to President Jefferson in connection with the prosecution of Aaron Burr,” the brief explains. “Jefferson resisted the subpoena for evidence, but Chief Justice Marshall rejected his argument. Unlike the King, Marshall explained, the President ‘does not stand exempt from the general provisions of the constitution.””
An esteemed group of retired four-star generals and admirals from the U.S. military told the Supreme Court that Trump’s position on immunity, if permitted, would “assault” the “foundational commitments” underpinning democracy and threatened to “subvert” the delicate balance of powers between the executive and legislative branches.
“For example, if emboldened by absolute immunity, the President might unsuccessfully seek authorization from Congress to undertake a certain action and then attempt to have the military carry out that action even though Congress rejected it,” the retired generals and other career military officials warned. “Moreover, our Constitution directs the people’s elected representatives in Congress to enact criminal laws that the executive is tasked with enforcing; allowing the President to violate those laws with impunity fundamentally distorts this constitutional allocation of powers.”
It would “severely undermine the commander-in-chief’s legal and moral authority to lead the military forces” because it would for once and all signal that “they but not he must obey the rule of law,” they wrote.
Trump’s immunity argument threatens the Constitution itself, the ACLU argued, adding siding with the immunity argument would “harm our national security and undermine our role as the international standard-bearer of democracy.”
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